April 30, 2015 (Acton.org) — With six words—“It is going to be an issue”—the U.S. government signaled to orthodox Christian colleges and universities that if they don’t drop their opposition to same-sex marriage they will lose their tax exempt status.
Those words came yesterday when the Supreme Court heard oral arguments in Obergefell v. Hodges, a case concerning whether the Fourteenth Amendment’s must guarantee the right for same-sex couples to marry. While the primary issue is whether gay marriage will be required in every state in the union, one exchange highlighted how the upcoming ruling could affect religious liberty. Justice Samuel Alito asked Solicitor General Donald Verrilli how it would affect educational institution that opposed same-sex marriage:
JUSTICE ALITO: Well, in the Bob Jones case, the Court held that a college was not entitled to tax exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?
GENERAL VERRILLI: You know, I…I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I…I don’t deny that. I don’t deny that, Justice Alito. It is … it is going to be an issue.
In the case of Bob Jones University (Bob Jones University v. United States (1983)), the Supreme Court ruled that the religion clauses of the First Amendment did not prohibit the IRS from revoking the tax exempt status of a religious university whose practices are contrary to a compelling government public policy.
The policy at Bob Jones was indeed loathsome and contrary to Scripture, which the school later admitted when it apologized for its racist past. But opposition to same-sex marriage is not the same as racial animus. Yet the government, through its representative, has now signaled that Christian schools may soon be treated like racists and pariahs for refusing to give up the view of marriage shared by almost all people throughout history prior to the 1990s.
This threat is more radical than many people realize. It’s not merely that Christian schools will have to choose between accepting federal funds and keeping their religious views about sexuality. If the choice were to follow the example of schools like Hillsdale College or New Saint Andrews College and forego taking any federal money, the decisions about what to do would be painful, but obvious.
But what is being proposed is to revoke non-profit status, a move that would destroy many schools. According to the IRS, if an organization’s tax-exempt status is revoked it is no longer exempt from federal income tax and is not eligible to receive tax-deductible contributions. As Al Mohler, president of Southern Baptist Seminary, notes, “The loss of tax-exempt status would put countless churches and religious institutions out of business, simply because the burden of property taxes and loss of charitable support would cripple their ability to sustain their mission.”
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In 2005, Jonathan Turley, a law professor who supports gay rights, warned this would happen:
The debate over same-sex marriage represents a coalescing of rights of free exercise, free speech, and expressive association. With the exception of abortion, same-sex marriage is almost unique in blurring neat divisions between these rights. Many organizations attract members with their commitment to certain fundamental matters of faith or morals, including a rejection of same-sex marriage or homosexuality. It is rather artificial to tell such groups that they can condemn homosexuality as long as they are willing to hire homosexuals as a part of that mission. It is equally disingenuous to suggest that denial of such things as tax exemption does not constitute a content-based punishment for religious views. . . . The denial of tax-exempt status presents a particularly serious threat to these organizations and puts them at a comparative advantage to groups with contrary views.
When Turley originally made this claim ten years ago, many people assumed he was overstating the case and that same-sex marriage would not require people and organizations to give up their deeply held religious beliefs. But now, as we’ve seen time and time again over the past few years, the threat to religious freedom is all too real.
Are supporters of same-sex marriage—including the many misguided Christians—willing to let Christian high schools, colleges, and seminaries be put out of business simply for holding a Biblical view of marriage? Sadly, I suspect they will follow what Rod Dreher calls the “law of merited impossibility”: “It’s a complete absurdity to believe that Christians will suffer a single thing from the expansion of gay rights, and boy, do they deserve what they’re going to get.”
Reprinted with permission from Acton Institute.